Students' Rights in Schools

The Supreme Court ruled in 1969 that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." This is true for other fundamental rights, as well.

Do I have First Amendment rights in school?

You have the right to speak out, hand out flyers and petitions, and wear expressive clothing in school — as long as you don’t disrupt the functioning of the school or violate school policies that don’t hinge on the message expressed.
What counts as “disruptive” will vary by context, but a school disagreeing with your position or thinking your speech is controversial or in “bad taste” is not enough to qualify. Courts have upheld students’ rights to wear things like an anti-war armband, an armband opposing the right to get an abortion, and a shirt supporting the LGBTQ+ community.
Schools can have rules that have nothing to do with the message expressed, like dress codes. So, for example, a school can prohibit you from wearing hats — because that rule is not based on what the hats say — but it can’t prohibit you from wearing only pink pussycat hats or pro-NRA hats.
Outside of school, you enjoy essentially the same rights to protest and speak out as anyone else. This means you’re likely to be most protected if you organize, protest, and advocate for your views off campus and outside of school hours.
You have the right to speak your mind on social media, and your school cannot punish you for content you post off campus and outside of school hours that does not relate to school.

Can my school tell me what I can and cannot wear based on my gender?

Public schools can have dress codes, but under federal law dress codes can’t treat students differently based on their gender, force students to conform to sex stereotypes, or censor particular viewpoints.
Schools can’t create a dress code based on the stereotype that only girls can wear some types of clothes and only boys can wear other types of clothes. For example, your school can require that skirts must be a certain length, but it cannot require that some students wear skirts and prohibit others from doing so based on the students’ sex or gender expression. That also applies to pants, ties, or any other clothing associated with traditional gender roles.
Dress codes also must be enforced equally. For example, rules against “revealing” clothing, such as bans on tank tops or leggings, shouldn’t be enforced only or disproportionately against girls.
All students should be allowed to wear clothing consistent with their gender identity and expression, whether they identify as transgender or cisgender. This also applies to homecoming, prom, graduation, and other special school events. Schools shouldn’t require different types of clothing for special events based on students’ sex or gender identity — for example, requiring tuxedos for boys and prom dresses for girls.

Can my school discipline me for participating in a walkout?

Because the law in most places requires students to go to school, schools can discipline you for missing class. But schools cannot discipline you more harshly because of the message or the political nature of your action.
The punishment you could face will vary by your state, school district, and school. If you’re planning to miss a class or two, look up the policy for unexcused absences for your school and school district. If you’re considering missing several days, read about truancy. Also take a look at the policy for suspensions.
If you are facing a suspension of 10 days or more, you have a right to a formal process and can be represented by a lawyer. Some states and school districts require a formal process for fewer days.
You should be given the same right to make up work just as any other student who missed classes.

What do I do if I’m confronted by police at my school?

If you’re stopped by a police officer at your school, stay calm. Don’t argue, resist, run away, or otherwise interfere with the officer. Ask if you’re free to leave. If the answer is yes, calmly and silently walk away from the officer.
If the officer asks you a question, you have the right to remain silent. You also have the right to refuse to write or sign a statement. But if you waive these rights, anything you say, write, or sign can be used against you. And if you choose to make a statement, ask to have a lawyer, parent, or guardian present before you are questioned.
You can refuse to give your consent to be searched by the police. This may not stop the search, but this is the best way to protect your rights if you end up in court.
Don’t consent to a phone search; police need a warrant to search your phone. The same goes for a strip-search. No police officer or school employee has the authority to strip-search you.
Don’t resist, fight, or flee from an officer who is arresting you. Say you wish to remain silent and ask for a lawyer immediately. Don’t say anything, sign anything, or make any decisions without a lawyer present.

The rights of immigrant students

Schools cannot discriminate against students on the basis of race, color, or national origin.
Undocumented children cannot be denied their right to a free public education, and schools should not require families to prove their immigration status in order to enroll their children in school.
Students with limited English proficiency cannot be turned away by public schools, which must provide them with language instruction.

The rights of students with disabilities

Public schools are prohibited by federal law from discriminating against people with disabilities, and cannot deny them equal access to academic courses, field trips, extracurricular activities, school technology, and health services.
Educators and administrators must make necessary academic and medical accommodations, ensure equal access to educational activities and opportunities, and respond to harassment and bullying.

LGBTQ+ student rights

LGBTQ+ students have a right to be who they are and express themselves in public schools.
Public schools have a responsibility to create a safe learning environment. They cannot ignore harassment based on a student’s appearance or behavior. Students should report harassment or threats to a principal or counselor. This puts the school on notice that officials can be held legally responsible for not protecting students.
Public schools cannot force students to wear clothing inconsistent with their gender identity.
If a public school permits any noncurricular clubs — clubs that aren’t directly related to classes taught in the school — then it must allow students to form a Gay-Straight Alliance or other LGBTQ+-themed clubs, and the school can’t treat it differently from other noncurricular clubs.
Students’ transgender status and gender assigned at birth are confidential information protected by federal privacy law. If your school reveals that information to anyone without your permission, it could be violating federal law. If you don’t want school officials revealing your private information to others, including your legal name, tell them very clearly that you want your information kept private and that they should not disclose that information to anyone without your consent.
Some states and cities explicitly protect the right of transgender students to use restrooms and locker rooms consistent with their gender identity. Additionally, several courts have ruled that excluding transgender boys and girls from using the same restrooms as other boys and girls violates federal education law. This is an area of the law that is changing a great deal right now. We recommend that you contact the ACLU if you have any questions about your rights at school.

The rights of pregnant students

Public schools and all schools that get federal funds are prohibited from excluding pregnant or parenting students from school, classes, or extracurricular activities, or pressuring them to drop out or change schools.
These schools must provide pregnant students the same accommodations that students with other temporary medical conditions are given, including the ability to make up missed classwork, attend doctor’s appointments, take time off for childbirth and recovery, and learn in a safe, nonjudgmental environment.
These schools are not allowed to punish a student who chooses to terminate a pregnancy or reveal a student’s private medical information.

Know Your Rights: Bullying in Public Schools

You have a right to be safe from bullying at school under both Nebraska and federal law.

WHAT IS BULLYING?

In Nebraska public schools, bullying can include any physical or verbal or electronic abuse:

on school grounds
in a school vehicle (owned, leased, or contracted by the school) used for a school purpose by a school employee or someone designated by the school employee (i.e. school bus)
at school-sponsored activities (i.e. pep rallies, school dances, etc.) or athletic events (i.e. soccer games, basketball games, track event, etc.)^[1]

Bullying can come from a classmate, teacher, or administration at your school or at or from another school. The reason doesn’t matter: whether it’s because of your sex, race, ethnicity, sexual orientation, gender identity or expression, disability, religion, immigration status or something entirely different, it’s illegal.

WHAT ARE MY RIGHTS?

You have a right to be safe from bullying at school under both Nebraska and Federal law.

But what about the First Amendment? Sometimes, bullies will try to dodge blame by claiming that you’re violating their First Amendment rights. They’re wrong. It’s true that everyone has the right to free speech under the U.S. Constitution but schools have an obligation to intervene if that speech is legally “obscene” or slanderous (a lie; knowingly untrue in order to harm someone else’s reputation), creates an immediate disruption or danger; or causes students to do something that is illegal or against school rules. In the words of our now Supreme Court Justice Samuel Alito in Saxe v. State College Area School District:

“Speech that would ‘substantially interfere’ with student’s educational performance is prohibited. The primary function of a public school is to educate its students; conduct that substantially interferes with the mission is, almost by definition, disruptive to the school environment.”^[2]

Nebraska Law

Nebraska law requires schools to adopt an anti-bullying policy^[3] and calls for long-term suspension, expulsion, or reassignment if a student engages in bullying and threatening or intimidating any other student.^[4] The anti-bullying policy must be reviewed by the school district on an annual basis.^[5]

Federal Law

When your school becomes a hostile environment and the harassment is “encouraged, tolerated, not adequately addressed, or ignored by school authorities,” the school is violating federal civil rights law.”^[6]

Specifically, Title VI of the Civil Rights Act of 1964 prohibits schools from excluding a person from participation in, dening a person the benefits of, or subjecting a person to, discrimination in any academic, extracurricular, research, occupational training or other program or activity based on sex, physical or mental disability, national origin or race, or sexual orientation.^[7]

Title IX of the Education Amendments of 1972 makes it unlawful for schools to discriminate on the basis of sex and Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 makes it unlawful for schools to discriminate on the basis of disability. Lastly, the Supreme Court case Plyler v. Doe prohibits schools from discriminating on the basis of immigration status.^[8]

Schools must have a clear, public and enforced policy for the prevention of harassment as well as a procedure for complaints^[9] and must investigate misconduct “regardless of whether a student has complained, asked the school to take action, or identified the harassment as a form of discrimination.”^[10]

WHAT DO I DO IF I’M BEING BULLIED?

If you have been bullied by someone at your school, the first thing you should do is make sure you are safe. After that, you should report the bullying. In many districts, you usually give your report to the principal, teacher, superintendent or (in cases of sexual harassment) the Title IX coordinator. Every public school district in Nebraska has its own policy on how to report harassment, usually contained in the Student Handbook. If you cannot find the original copy, the school may have it online or you can ask for a copy in the school office.

When you report bullying, be sure to keep a written record of each step you take, including copies of anything you give the school, notes on what the harasser did to you, who else saw what happened (including other school employees) and the dates each event happened. If reporting the bullying does not put an end to it, contact the ACLU of Nebraska to ask for help.

Q&A

Is my report private?

Reporting harassment is the only way to be sure your school is legally responsible for addressing the problem, but if you can’t file a report because of privacy concerns, consider sending an anonymous letter to the superintendent so that your school will know harassment is occurring. You can also ask the ACLU of Nebraska to help persuade your school to address harassment more generally.

What if the person complained about tries to get back at me?

You can be punished if you intentionally make a false report, but school employees may not retaliate against you for honestly reporting harassment. If they do, or if a student you complained about continues harassing you, make another written report to the principal right away. You can also contact the ACLU of Nebraska to ask for help.

What if the school doesn’t believe my report or ignores it?

Some districts allow you to file an appeal through the normal grievance procedure if the school rejects, or fails to respond promptly to your report of harassment/bullying. If your school rejects or ignores your report, contact the ACLU of Nebraska to request help.

Can I tell my parents or friends that I have reported harassment?

You may talk to others about the harassment report, and it is a good idea to discuss it with a parent or another adult you trust. But be aware that what you say to friends, reporters, or online may be used by your harasser or your school to discredit your report. Even true statements can be damaging if they are made in anger or can be misinterpreted to sound inconsistent with what you said in your report.

STRATEGIES FOR PARENTS

Listen: Ask your child how children treat each other at school, and how your child is treated.

Advise: Let your child know never to ignore bullying or to walk by if you see it happening to someone else; if you can’t intervene directly, report it.

Advocate: Request to see the school’s anti-bullying policy and work with the school to provide an effective, school-wide campaign against bullying.

Be present: Be involved at your child’s school. Get together and take action with other concerned parents in order to raise expectations about the school’s approach to bullying.

Three things to know about bullying: You’re not at fault, you’re not alone, and even more importantly…you have rights.

ADVOCACY RESOURCES

Nebraska Department of Education
301 Centennial Mall South
P.O. Box 94987
Lincoln, NE 68509-4987
Phone: (402) 471-2295
Fax: (402) 471-0117
education.ne.gov

Anti-Defamation League
333 South 132nd Street
Omaha, NE 68154
Phone: (402) 333-1303
Fax: (402) 333-5497
omaha@adl.org

Disability Rights Nebraska
134 South 13th Street, Suite 600
Lincoln, NE 68508
Phone: (402) 474-3183
Fax: (402) 474-3274
Toll-free: (800) 422-6691
info@disabilityrightsnebraska.org
disabilityrightsnebraska.org

Gay, Lesbian, and Straight Education Network (GLSEN)
P.O. Box 540413
Omaha, NE 68154
omaha@chapters.glsen.org
glsen.org/chapters/omaha

^[1]Neb. Rev. Stat. § 79-2,137 (2008).

^[2]Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001).

^[3] Neb. Rev. Stat. § 79-2,137 (2008).

^[4] Neb. Rev. Stat. § 79-267 (2010).

^[5]Neb. Rev. Stat. § 79-2,137 (2008).

^[6] U.S. Dep’t of Educ., Off. For Civ. Rts. & U.S. Dep’t of Justice, Civ. Rts. Div., “Dear Colleague” Letter: Harassment and Bullying, (Oct. 26, 2010), https://www2.ed.gov/about/of ces/list/ocr/letters/colleague-201010.pdf.

^[7] See 42 U.S.C. §2000D; 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial assistance.”); 29 U.S.C. § 794 (prohibiting discrimination against otherwise qualified person on the basis of disability); 42 U.S.C. § 12131 ; 20 U.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”)

^[8] Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382 (1982).

^[9] 28 C.F.R. § 35.107(b); 34 C.F.R. § 104.7(b); 34 C.F.R. § 106.8(b).

^[10] Dear Colleague” Letter: Harassment and Bullying at 3.